Indeed, a Chamber retains discretion not to grant provisional release even if it is satisfied that the two conditions given in Rule 65(B) have been met.
Last week, in the Haradinaj case, the Trial Chamber denied the accused’s motion for provisional release even though the two conditions of Rule 65(B) were met.
The Chamber took into account that that witness intimidation remains prevalent in Kosovo (where the accused formerly was a prime-minister) and that there had been an unprecedented atmosphere of widespread and serious witness intimidation surrounding the trial.
The Chamber further accepted the submission of the Prosecution that a decision to grant the accused provisional release will draw additional media attention to the proceedings, which will add to the already threatening atmosphere for witnesses and that the publicity following such a decision may encourage the accused's supporters to engage in acts of intimidation.
The Chamber found that although the conditions set forth in Rule 65(B) were met, the Chamber should exercise its discretion to deny provisional release.
The Chamber noted that in exercising its discretion in this way the Chamber attached special importance to the risk to the integrity of the trial posed by the accused's release and it took into account the likelihood that the pre-trial phase would not be lengthy.
Haradinaj, Decision on Ramush Haradinaj's Motion for Provisional Release, Case No. IT-04-84bis-PT, T. Ch., 10 September 2010.See also previous post on this blog: "The ICTY President: the Appeals Chamber overstepped its boundaries".